Dr. S.L. Peeran, Judicial Member. - This appeal arises from OIA No. 23/03, dated 31-3-2003 by which service tax has been levied on the ground that assessee is rendering services on cellular phones. That they did not reveal that they had not incorporated the activation charges in the form of price of SIM card which they are collecting from their subscribers while computing the value of taxable services. The matter was adjudicated by the Kerala High Court confirming payment of service tax, penalty and interest. However, this issue was taken up before the Apex Court in the case of Bharat Sanchar Nigam Ltd. v. UOI [Writ Petition (Civil) No. 183 of 2003] wherein the Apex Court has remanded the matter to determine as to whether the sales tax has been levied or not.

2. Learned Counsel submits that they are not challenging the levy of sales tax in the matter and the sale of SIM cards to goods. Once the transaction is considered as sale of goods then the question of considering the activity as auxiliary service cannot be considered and service tax cannot be imposed. They do not want to contest on the levy of sales tax cannot be imposed. They do not want to contest on the levy of sales